Citation Nr: 0731016
Decision Date: 10/02/07 Archive Date: 10/16/07
DOCKET NO. 06-00 228 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The veteran had active military service from June 1962 to
June 1964.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Hartford, Connecticut, which denied service connection for
bilateral hearing loss.
In June 2006, a hearing was held before the undersigned
Veterans Law Judge at the RO in Hartford, Connecticut. A
transcript of that proceeding has been associated with the
claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
After a thorough review of the veteran's claims folder, the
Board has determined that additional development is necessary
prior to the adjudication of the claim.
The veteran alleges that he suffers from bilateral hearing
loss as a result of acoustic trauma sustained during military
service in the artillery and infantry. He testified that he
participated in field exercises for extended periods of time
during which weapons were fired every day.
A VA audio examination was conducted in April 2005.
Unfortunately, that examination report reflects both that the
claims folder was not available for review and that no
opinion was provided as to the onset or etiology of bilateral
hearing loss diagnosed at that time.
The Board observes that a private medical statement of Dr.
W., dated in March 2006, was received for the record in April
2006. It appears that this evidence was discussed at the
June 2006 hearing and that a signed waiver of initial review
of this evidence by the agency of original jurisdiction (RO)
was procured at that time. As to the substance of the March
2006 medical statement, the veteran provided Dr. W. with a
recitation of history of exposure to artillery fire during
service in the 1960's and complained of progressive hearing
loss since that time. Dr. W. opined in turn that he could
not definitely attribute the hearing loss in its entirety to
noise exposure (in service) but that in all likelihood part
of the hearing loss was from noise exposure. However, the
medical statement reflects that the service medical records
were not reviewed in rendering that opinion, as it is
mentioned therein that the veteran believed that his service
records could not been located. (In fact, the service
medical records for the veteran's period of service extending
from 1962 to 1964 have been located and were received for the
record in June 2005.)
In essence, the record as it currently stands contains no
medical opinion regarding the onset or etiology of the
veteran's currently manifested hearing loss which is based
upon the review of the veteran's claims folder, to include
review of his service medical records and pertinent post-
service clinical evidence.
In view of clinical evidence showing that the veteran has
currently manifested hearing loss which meets the threshold
requirements of 38 C.F.R. § 3.385, and testimony from the
veteran to the effect that he experienced acoustic trauma
during service, the scheduling of a new VA examination is
warranted to include a request for an opinion as to the
etiology of the veteran's currently manifested hearing loss
with the benefit of review of the claims folder and service
medical records. See Duenas v. Principi, 18 Vet. App. 512,
518 (2004); Charles v. Principi, 16 Vet. App. 370, 374-75
(2002); 38 U.S.C.A. § 5103A (d) (West 2002 & West Supp.
2006); 38 C.F.R. § 3.159(c)(4) (2007).
In addition, it appears that the veteran has been receiving
treatment for hearing loss at the VAMC in West Haven, CT.
Records from that source on file are current to November
2005; accordingly, records dated from November 2005, forward,
will be requested herein.
Accordingly, the case is REMANDED for the following action:
1. Obtain the veteran's medical records
from the West Haven, CT VAMC for any
treatment and evaluation concerning
hearing loss from November 2005 forward.
2. After obtaining the above records to
the extent possible, the veteran should
be afforded an audiological examination.
The claims file should be provided to the
physician for review, and the examiner
should note that it has been reviewed.
After reviewing the file, the physician
should render an opinion as to whether it
is at least as likely as not that the
veteran's currently manifested hearing
loss is the result of a disease or injury
in service.
It would be helpful if the physician
would use the following language, as may
be appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely" (meaning
that there is a less than 50%
likelihood).
The term "at least as likely as not" does
not mean "within the realm of medical
possibility." Rather, it means that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of that conclusion as it is to find
against it. The examiner should provide
a complete rationale for any opinion
provided.
3. Then, the RO/AMC should readjudicate
the claim to include consideration of all
evidence presented for the file
subsequent to the December 2005 Statement
of the Case. In the event that the claim
is not resolved to the satisfaction of
the veteran, he should be provided a
supplemental statement of the case.
After the veteran has been given the
applicable time to submit additional
argument, the claim should be returned to
the Board for further review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examination, is both
critical and appreciated. The veteran is also advised that
failure to report for any scheduled examination may result in
the denial of a claim. See 38 C.F.R. § 3.655 (2007).
This claim must be afforded expeditious treatment.
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).